Thursday, October 22, 2015

SCOTUS to Combat Link Rot

At the beginning of the October 2015 Term, the Supreme Court announced on its website's "What's New" section that it will host internet material cited in the Court’s opinions from the 2005 Term forward.

Image of "What's New" section on Supreme Court Website

It's a good idea that the Court chose to do this. When we rely on something, we want others to know what we relied on. As the Court explains, “Because some URLs cited in the Court's opinions may change over time or disappear altogether, an attempt is made to capture, as closely as possible, the material cited in an opinion at the time of its release. Capture dates, when they appear on the material, may not match the ‘as visited’ date contained in an opinion's citation to that material.”

Below is a funny example of the potential trouble with citing to a website:

404 page of website cited by Justice Alito

This 404-page is not what Justice Alito intended to cite to, instead he wanted to cite to a webpage titled "Inside the Sick Site of a School Shooter Mod."(1) The change to the website cited by Justice Alito, http://, was picked up by The New York Times.

The webpage now pokes fun at both Justice Alito and The New York Times.
The Internet Archive’s “Wayback Machine” has taken a snapshot of the webpage on April 14, 2011 (Justice Alito visited the page March 26, 2011, and the opinion was released in June of that year):

Original page that Justice Alito wanted to cite to

The Internet Archive is a useful tool if you’re researching previous content of a website. It even tells us that on March 31, 2012 the website cited by Justice Alito was for sale and that by April 2, 2012 it belonged to the current owners. My guess is the current owners updated it on April Fools’ Day.

Here's some relevant trivia and my guesses as to why the Court decided to begin hosting material 2005 forward.

All of the Justices serving on the Rehnquist and Roberts Courts have cited to a webpage in a majority opinion. (2)

Justice Souter was the first member of the Supreme Court to include a link to a webpage in an opinion. He did so in a 1996 concurrence. (3)

Before the 2005 term, by my count, fewer than 70 Court opinions cited to webpages. It cited over twice that amount over the next decade. 2008 was a particularly citation heavy year; there were over 90 links included in Court opinions.
The 2005 term may have been chosen because it was the first term both Justice Thomas and Justice Breyer include links to the web in majority opinions. (4) But I think it’s more likely that the Court chose 2005 because it was Chief Justice Roberts’s first term on the Court.

Chief Justice Roberts is celebrating his 10th year on the Court, and I can’t think of a better way to celebrate it.

1. Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, 2749 n. 14 (2011) (Alito, J., concurring)

2. For a full rundown, see notes 24 and 25 of Raizel Liebler & June Liebert's Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996–2010), 15 Yale J. L. & Tech. 273 (2013). It's available at:

3. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 777 n.4 (1996) (Souter, J., concurring)

4. See, Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 108 n.3 (2005) and Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 65 (2006)

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